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A Portland Judge’s Stirring Support of Freedom of the Press

This column expresses the views of Gene Policinski, senior fellow for the First Amendment, Freedom Forum.

The nation’s long-standing watchdog on government – a free press – just got freed from a dangerous, sometimes violent “federal leash” in downtown Portland, Ore., for at least two weeks.

U.S. District Judge Michael H. Simon issued an order Thursday barring federal officers – for at least 14 days, to allow for further legal action —  from requiring journalists and legal observers to “disperse;” from threatening or targeting them violently; or from forcing them to move to remote locations, even when officers are justified in ordering demonstrators to leave a particular area or using force.

First Amendment advocates can take heart in the ringing, opening lines of Simon’s order, which quotes from earlier decisions in the U.S. Ninth Circuit:

“Open government has been a hallmark of our democracy since our nation’s founding. … When wrongdoing is underway, officials have great incentive to blindfold the watchful eyes of the Fourth Estate. The free press is the guardian of the public interest, and the independent judiciary is the guardian of the free press.”

Simon added, “This lawsuit tests whether these principles are merely hollow words.” That sentiment is both heartening and chilling in a nation where free press protections have been well-established since 1791.

The nation’s founders, who created the First Amendment as a counterweight to government overreach to protect the public’s core freedoms, would be proud to read the 22-page opinion.

Simon’s order came in a lawsuit brought by the American Civil Liberties Union of Oregon on behalf of a group of news organizations. The lawsuit includes a dozen statements from journalists, photojournalists and legal observers who have been injured by “impact munitions fired by federal officers during a month of demonstrations in Portland.” Earlier, Simon issued a similar order applying to local authorities.

The new order warns the federal government that officers and supervisors will lose special legal protections called “qualified immunity” if they willfully violate it.

Critics of the unmarked federal officers seen in Portland have contended that laws that shield public officials from successfully being sued for actions related to their jobs unless blatantly abusive or unconstitutional, effectively immunized those officers from the consequences of their actions. Simon rejected a variety of arguments government attempting to justify the federal force’s actions and declared that the press has an established legal right not just to report the news but also to gather it.

The judge noted the press group submitted evidence of the federal force targeting journalists who were clearly identified, often long distances away from demonstrators and not linked by the government to any violent acts. The federal force used tear gas canisters, pepper balls, pepper spray, batons, flash-bang grenades, so-called rubber bullets and “less lethal munitions” against the journalists.

A “pattern of official sanctioned conduct” by the federal force combined with journalists’ intentions to continue to report on the demonstrations, “make future injury all but inevitable,” Simon warned.

Federal lawyers said it is not a “practical option” for police to identify journalists in the heat of sometimes-violent demonstrations. Simon conceded errors may occur in the heat of the moment, but – in words that should be shouted by Americans from the rooftops – he said the journalists are “engaging in constitutionally protected First Amendment activity.”

“It is one thing,” he wrote, “to ask citizens to obey the law in the future to avoid future alleged harm. But it is quite another for the Federal Defendants to insist (journalists) must forgo constitutionally protected activity if they wish to avoid government force and interference.”

Simon said that “backward-looking claims for money damages” in later lawsuits would not provide the relief that journalists are seeking: “access and the ability to exercise their First Amendment rights to observe and report on government misconduct.”

Some journalists are so fearful of injury that they “are hesitant” to continue their reporting, he said, adding, “This chilling of First Amendment rights is not adequately compensable with money damages.”

Simon also rejected claims that the federal action against reporters was the “‘unintended consequences’ of crowd control.” He noted situations in which journalists showed evidence “they were identifiable as press, were not engaging in unlawful activity or protesting, were not standing near protesters, and yet were subject to violence by federal agents.”

The judge termed as “circular logic” some government arguments such as “journalists have no right to stay, observe and document when government ‘closes’ public streets.”

Noting that federal authorities have no right to close streets, he said nonetheless that the point of journalists observing and documenting such an action “… is to record whether the ‘closing’ … is lawfully originated and carried out.”

“Without journalists and legal observers, there is only the government’s side of the story to explain why a ‘riot’ was declared and the public streets were closed and whether law enforcement acted properly,” Simon said.

That rationale for First Amendment protections ought to be taught in every classroom in the United States – particularly when annual surveys done since 1997 by the Freedom Forum have shown that no more than six percent of Americans can name all five freedoms in the amendment and often, a third of us cannot name any.

Simon’s order sets out First Amendment considerations in practical terms:

  • When the government claimed reporters could fulfill their constitutional duties from what the judge described as an “alternate location … a few blocks away,” he disagreed. Federal agents are using tear gas, which decreases visibility, and the protests are at night,” he said.
  • When the government said it was impractical to allow some people (journalists) to remain in an area after a dispersal order, Simon said that local Portland police have found “this precise remedy has been working for 21 days.”

In a final section of his order, Simon noted federal lawyers argued that the government’s “interest in maintaining order on public property outweighs (journalists’) First Amendment concerns.”

But stating the government conceded it was unable to show any evidence that any journalists or legal observer “has damaged federal property or acted violently towards federal officers,” Simon concluded that “none of the government’s proffered interests outweigh the public’s interest in accurate and timely information about how law enforcement is treating protesters.”

Simon’s step-by-step examination of threats to a free press and working journalists, and his explanation of why the First Amendment contains such strong protection for it and their work, makes for compelling reading for every citizen.

Gene Policinski is a senior fellow for the First Amendment at the Freedom Forum, and president and chief operating officer of the Freedom Forum Institute. He can be reached at [email protected], or follow him on Twitter at @genefac.

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